Michael J. Loomis, Plaintiff-appellant, v. Richard A. Vernon; Arvon Arave, Defendants-appellees, 26 F.3d 131 (9th Cir. 1994)

MEMORANDUM^** 

Michael J. Loomis, an Idaho state prisoner, appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. § 1983 complaint. The district court specifically stated that it was dismissing the complaint and not the action. Therefore, we dismiss Loomis's appeal for lack of an appealable final order.

The dismissal of a complaint without the dismissal of the underlying action is not considered an appealable final order under 28 U.S.C. § 1291. Gerritson v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987); Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir. 1984).

Here, the district court "administratively terminated" Loomis's complaint pending the outcome of Loomis v. Idaho State Bd. of Corrections, No. 93-004-S-HLR (D. Idaho filed Aug. 3, 1993). The district court found that the two cases raised substantially similar claims. In dismissing the complaint, the district court terminated the complaint but did not dismiss the action. The district court's order states: "Once Civil Case No. 93-004-S-LHR is fully resolved, should [Loomis] wish to pursue further claims, he may then move to reopen this proceeding." Thus, Loomis is free to reopen his action with claims not disposed of in the other case currently pending in the district court. Therefore, we conclude that the district court's order dismissing Loomis's complaint and not the action is not an appealable final order. See Gerritson, 819 F.2d at 1514; Hoohuli, 741 F.2d at 1171 n. 1.

DISMISSED.